Attorney Herald Price Fahringer ran into a dubious appellate panel on Feb. 29 as he argued that disbarred defense attorney Lynne Stewart was unfairly punished for free speech when comments she made after sentencing outside the courthouse helped persuade a judge to more than triple her prison term in 2010.
Before a courtroom filled with Stewart supporters, Mr. Fahringer told a panel of the U.S. Court of Appeals for the Second Circuit that Southern District Judge John Koeltl (See Profile) violated Ms. Stewart’s First Amendment rights at resentencing when he found the statements she made after her initial sentencing in 2006 showed a lack of remorse.
Ms. Stewart was convicted in 2005 of providing material support to a designated terror group by pass-ing messages to and from her imprisoned client, Sheikh Omar Abdel Rahman, and his followers in the outlawed Islamic Group in Egypt.
She was initially sentenced on Oct. 16, 2006, by Judge Koeltl to 28 months and afterwards met her supporters outside the courthouse, where she crowed that she could serve the sentence “standing on my head.” Ms. Stewart later said in a recorded interview, “I’d like to think that I would not do anything differently” and “I would do it again.”
The Second Circuit upheld her conviction in 2009 but reversed on the sentence. The court sent it back to Judge Koeltl, with two judges seeking further examination in light of perjury Ms. Stewart committed on the witness stand, the application of sentencing enhancement for committing a crime of terrorism, and her role in abusing a position of trust as a lawyer, such as when she broke a signed promise to abide by a prison gag order on the sheikh, most seriously by communicating his approval of a resumption of terror attacks by the Islamic Group.
Ms. Stewart’s post-sentencing comments were also on the table as Judge John M. Walker Jr. (See Profile) dissented from Judges Robert D. Sack (See Profile) and Guido Calabresi (See Profile) on the reasons for overturning a sentence he called “breathtakingly low” (NYLJ, Nov. 18, 2009).
Judge Koeltl took those comments into account when he ordered a stunned Ms. Stewart to prison for 10 years.
Mr. Fahringer told the circuit panel hearing United States v. Stewart, 10-3185-cr., that it was wrong to punish Ms. Stewart for comments made “on the steps of the courthouse,” where there has always been “much wider latitude” for speech.
He urged the panel not to go “down that road” because “no one will be able to comment after a sentence for fear that the same thing could happen to them.”
The argument did not appear to persuade the panel, which was made up of the same three judges who remanded the case for resentencing.
“I’m not sure freedom of speech means absolute immunity from the consequences of what you say,” Judge Sack said.
Mr. Fahringer said the problem was that Ms. Stewart’s comments were ambiguous.
“If it’s ambiguous under the First Amendment you have to give the speaker the benefit of the doubt,” he said.
Mr. Fahringer added that it would be different if Ms. Stewart had given a public speech and said, “Of course I lied.”
“If she said outright ‘I have no remorse,’ is that something that could be taken into account?” Judge Calabresi asked.
Yes, Mr. Fahringer said, but only if it was “clear.”
Assistant U.S. Attorney Andrew Dember reminded the panel that Judge Koeltl found Ms. Stewart had perjured herself seven times on the witness stand, including when she denied knowledge of a key figure in the terror conspiracy and stated that she thought, as a lawyer, she acted lawfully within a “bubble” in dealing with the sheikh.
As to Ms. Stewart’s statements, Mr. Dember said Judge Koeltl was “very precise” as to each of her statements, and, in the end, “imposed a just and reasonable sentence.”
And when asked about Mr. Fahringer’s argument that the benefit of the doubt goes to the speaker when the speech is ambiguous, Mr. Dember answered that “Judge Koeltl didn’t find any of the statements ambiguous at all.”
Mr. Abdel Rahman is serving a life sentence for seditious conspiracy against the United States. Ms. Stewart was his lawyer at trial before then-Judge Michael Mukasey in 1995, when he was convicted along with nine others who planned to blow up New York City landmarks.
Once in prison, the sheikh was subjected to special administrative measures, or SAMS, to prevent him from communicating with Islamic Group, which claimed responsibility for the 1997 massacre of tourists at an archeological site in Luxor, Egypt.
Ms. Stewart promised to abide by the SAMs but was caught breaking that promise at the Federal Medical Center in Rochester, Minn. She signed another affirmation not to pass communications to and from the sheikh, and she broke the vow again.
She was ultimately charged in 2002 along with interpreter Mohammed Yousry and Ahmed Abdel Sattar, an active Islamic Group leader who was the sheikh’s paralegal at his 1995 trial.
She testified that she never believed actual violence would follow a press release she made on behalf of the sheikh announcing his withdrawal of support for an Islamic Group cease-fire on terror attacks.
A marathon trial that began on May 19, 2004, ended on Feb. 10, 2005, with the convictions on all counts of Ms. Stewart, Mr. Sattar and Mr. Yousry. Ms. Stewart was convicted of conspiracy to defraud the United States, two counts of conspiracy to provide and conceal the provision of material support to a terrorist conspiracy and two counts of making false statements in connection with the SAMS.
The convictions were upheld on appeal in 2009, but her sentence divided the Second Circuit. Judge Sack and Judge Calabresi said remand was necessary because, without specific findings on perjury, they could not evaluate whether her sentence was substantively reasonable. They also asked for Judge Koeltl to closely examine her conduct as an attorney and, in an amended opinion in December, raised the possibility that Judge Koeltl erred on the terrorism sentencing enhancement (NYLJ, Dec. 24, 2009).
Judge Walker, in dissent, had no problem finding the 28-month prison term substantively unreasonable, saying “Stewart’s sentence is so out of line with the extreme seriousness of her criminal conduct” and her issuing the press release was “an action that effectively sanctioned renewed terrorist attacks and indiscriminate loss of human life.”
The court took the unusual step of directing that Ms. Stewart begin serving her sentence immediately. But it withheld the mandate while the full circuit grappled with the possibility of rehearing en banc.
The circuit voted in February 2010 against rehearing en banc, but several judges indicated displeasure with the sentence. In one opinion, Judge Jose Cabranes accused the majority on the three-judge panel of “punting” on the case and doing no more than conveying “winks and nods” on how to fix the sentence (NYLJ, Feb. 24, 2010).
At her re-sentencing, Ms. Stewart was contrite and apologized to the court for her post-sentencing comments, saying, “I have learned that no one, but particularly this 70-year-old woman, can do 28 months standing on their head. I was wrong.”
Ms. Stewart, now 72, is serving her sentence at a federal prison hospital in Fort Worth, Texas. She suffers from a number of health issues, and she revealed before sentencing that she had breast cancer.
@|Mark Hamblett can be contacted at firstname.lastname@example.org.